EXHIBIT 1.1
First USA Credit Card Master Trust
Class A Floating Rate Asset Backed Certificates,
Series 1996-7
Class B Floating Rate Asset Backed Certificates,
Series 1996-7
UNDERWRITING AGREEMENT
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December 4, 1996
Swiss Bank Corporation, London Branch
Barclays de Zoete Wedd Limited
Deutsche Bank AG London
c/o Swiss Bank Corporation, London Branch
Swiss Bank House
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
First USA Bank, a Delaware chartered banking corporation (the "Bank"), has
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duly authorized the issuance and sale to the managers listed on Schedule I
hereto (the "Managers"), for whom Swiss Bank Corporation, London Branch is
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acting as lead manager (the "Lead Manager"), of U.S.$483,060,000 aggregate
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principal amount of First USA Credit Card Master Trust Class A Floating Rate
Asset Backed Certificates, Series 1996-7 (the "Class A Certificates") and of
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U.S.$43,650,000 aggregate principal amount of Class B Floating Rate Asset Backed
Certificates, Series 1996-7 (the "Class B Certificates" and together with the
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Class A Certificates, the "Certificates"). The Certificates will be issued
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pursuant to a Pooling and Servicing Agreement, dated as of September 1, 1992, as
heretofore amended and supplemented (the "Master Pooling and Servicing
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Agreement"), by and between the Bank, as transferor and servicer, and The Bank
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of New York (Delaware) (the "Trustee"), as proposed to be supplemented by the
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Series 1996-7 Supplement to be dated as of December 11, 1996 (the "Supplement"
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and together with the Master Pooling and Servicing Agreement, the "Pooling and
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Servicing Agreement"), by and between the Bank and the Trustee.
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Each Certificate will represent an undivided interest in certain assets of
First USA Credit Card Master Trust (the "Trust"). The property of the Trust
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will include, among other things, receivables (the "Receivables") arising under
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certain
MasterCard(R) and VISA(R)/*/ revolving credit card accounts (the "Accounts").
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Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement.
1. Representations, Warranties and Agreements of the Bank. The Bank
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represents and warrants to, and agrees with, the Managers as follows:
(a) The Offering Circular dated as of November 14, 1996 (the "Base
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Offering Circular") and Offering Circular Supplement, dated as of November 14,
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1996 (the "Offering Circular Supplement" and together with the Base Offering
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Circular, the "Offering Circular"), prepared in connection with the offering of
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the Certificates, were, as of the date thereof, and will be, as of the Closing
Date, as then amended or supplemented (and any amendment or supplement thereto
will be, as of the date thereof and as of the Closing Date), accurate in all
material respects and did not, and will not, contain, as of the date thereof and
as of the Closing Date, any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
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that the Bank makes no representations or warranties as to the information
contained in or omitted from the Offering Circular (or any amendment or
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Bank by, or on behalf of, any Manager specifically
for inclusion therein.
(b) The Bank is duly organized, validly existing and in good standing
as a banking corporation under the laws of the State of Delaware, United States,
and is qualified to trans act business in and is in good standing under the laws
of each state in the United States in which its activities require such
qualification, and has full power, authority and legal right to own its
properties and conduct its business as such properties are presently owned and
such business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement, the Spread Account Agreement dated as of
December 11, 1996 by and between the Bank and the Trustee (the "Spread Account
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Agreement"), the Pooling and Servicing Agreement, the Certifi xxxxx and the CIA
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Certificates.
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/*/ VISA(R) and MasterCard(R) are registered trademarks of Visa USA
Incorporated and MasterCard International Incorporated, respectively.
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(c) This Agreement has been duly authorized and validly executed and
delivered by the Bank.
(d) The Pooling and Servicing Agreement has been duly authorized and,
when executed and delivered by the Bank and assuming the due authorization,
execution and delivery thereof by the Trustee, will constitute a valid and
binding obligation of the Bank enforceable against the Bank in accordance with
its terms, subject to applicable bankruptcy, reorganization, insolvency and
similar laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is pursuant to a proceeding in equity or at law). As of the Closing
Date, the Pooling and Servicing Agreement will have been duly and validly
executed by the Bank and will conform in all material respects to the
description thereof contained in the Offering Circular.
(e) The Certificates and the CIA Certificates have been duly and
validly authorized by all required action of the Bank, and when duly and validly
executed and delivered by the Bank and authenticated by or on behalf of the
Trustee in accordance with the Pooling and Servicing Agreement, and, with
respect to the Certificates, delivered to and paid for by the Managers as
provided herein, or, with respect to the CIA Certificates, delivered to and paid
for by the purchasers thereof as provided in the CIA Purchase Agreement dated as
of November 14, 1996 (the "CIA Purchase Agreement"), between the Bank, as
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transferor and servicer, and the purchaser or purchasers named therein, will be
validly issued and outstanding and entitled to the benefits of the Pooling and
Servicing Agreement. As of the Closing Date, the Certificates will have been
duly and validly executed and delivered by the Bank, and will conform in all
material respects to the descriptions thereof contained in the Offering Circular
and the CIA Certificates will have been duly and validly executed and delivered
by the Bank.
(f) The Spread Account Agreement has been duly authorized, executed
and delivered by the Bank and assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a valid and binding
obligation of the Bank enforceable against the Bank in accordance with its
terms, subject to applicable bankruptcy, reorganization, insolvency and similar
laws affecting creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is pursuant to a
proceeding in equity or at law).
(g) The Receivables delivered on the Closing Date to the Trustee
pursuant to the Pooling and Servicing Agreement will conform in all material
respects with the description thereof contained in the Offering Circular.
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(h) Neither the transfer of the Receivables to the Trustee, nor the
issuance, sale and delivery of the Certificates or the CIA Certificates, nor the
execution or delivery of this Agreement, the Spread Account Agreement, or the
Pooling and Servicing Agreement, nor the consummation of any of the transactions
herein or therein contemplated, nor the fulfillment of the terms of the
Certificates, the CIA Certificates, the Pooling and Servicing Agreement, the
Spread Account Agreement or this Agreement, will result in the breach of any
term or provision of the charter or by-laws of the Bank, or conflict with,
result in a breach, violation or acceleration of, or constitute a default under,
the terms of any indenture or other agreement or instrument to which the Bank is
a party or by which it or its properties is bound or may be affected or conflict
with or result in a breach or violation of any statute, order or regulation
applicable to the Bank of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Bank or will result
in the creation of any Lien upon any property or assets of the Bank (other than
as contemplated in the Pooling and Servicing Agreement). The Bank is not a
party to, bound by, or in breach or violation of, any indenture or other
agreement or instrument, or subject to or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over it, that materially and adversely
affects the ability of the Bank to perform its obligations under this
Agreement, the Pooling and Servicing Agreement, the Spread Account Agreement,
the Certificates, or the CIA Certificates.
(i) There are no charges, investigations, actions, suits, claims or
proceedings before or by any court, regulatory body, administrative agency,
governmental body or arbitrator now pending or, to the knowledge of the Bank,
threatened that, separately or in the aggregate (i) could have a material
adverse effect on (x) the general affairs, business, management, financial
condition, stockholders' equity, results of operations, regulatory status or
business prospects of the Bank or (y) the ability of the Bank to perform its
obligations under this Agreement, the Spread Account Agreement, the Pooling and
Servicing Agreement, the Certificates, or the CIA Certificates, (ii) assert the
invalidity of this Agreement, the Spread Account Agreement, the Pooling and
Servicing Agreement, the Certificates, or the CIA Certificates, (iii) seek to
prevent the issuance, sale or delivery of the Certificates or the CIA
Certificates or any of the transactions contemplated by this Agreement, the
Spread Account Agreement, or the Pooling and Servicing Agreement or (iv) seek to
affect adversely the United States federal income tax attributes of the
Certificates described in the Offering Circular.
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(j) No United States federal, state or local tax, including
intangibles tax or documentary stamp tax, the non-payment of which would result
in the imposition of a Lien on the Receivables or of transferee liability on the
Trustee, is imposed with respect to the conveyance of the Receivables from the
Bank to the Trust, or in connection with the issuance of the Certificates by the
Trust, or the holding of the Receivables by the Trust, or in connection with any
of the other transactions contemplated by this Agreement, the Spread Account
Agreement, or the Pooling and Servicing Agreement. Any taxes, fees and other
governmental charges in connection with the execution, delivery and issuance of
the Certificates or the execution and delivery of this Agreement, the Spread
Account Agreement, or the Pooling and Servicing Agreement have been or will have
been paid at or prior to the Closing Date.
(k) As of the Closing Date, the representations and warranties of the
Bank in the Pooling and Servicing Agreement, with regard to itself as both
transferor and servicer and the Receivables (individually and in the aggregate),
will be true and correct.
(l) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the execution, delivery and performance by the Bank of or compliance by the
Bank with this Agreement, the Spread Account Agreement, the Pooling and
Servicing Agreement, or the Certificates or the consummation of the transactions
contemplated hereby or thereby except the filing of Uniform Commercial Code
financing statements with respect to the Receivables and the approval of the
Office of the State Bank Commissioner of the State of Delaware, United States.
(m) Xxxxx & Young LLP who have audited certain financial statements
of the Bank are independent public accountants in accordance with Rule 101 of
the American Institute of Public Accountants code of professional conduct and
its interpretations and rulings.
(n) As of the close of business on October 31, 1996, the Principal
Receivables transferred to the Trust pursuant to the Pooling and Servicing
Agreement have an aggregate balance, including the Receivables in the Additional
Accounts to be added to the Trust on or prior to the Closing Date, of not less
than the sum of (i) the sum of (x) the aggregate outstanding principal amount of
all classes of all Series outstanding on October 31, 1996, plus (y)
U.S.$2,103,400,000, plus (ii) 7% of the sum of (x) plus (y).
(o) The Trust is not, and will not be as a result of the issuance and
sale of the Certificates, an "investment company" or a company "controlled by"
an investment company
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within the meaning of the Investment Company Act of 1940, as amended (the "1940
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Act").
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(p) Assuming the representations and warranties of the Managers in
Section 12 hereof are true, correct and complete and that each Manager has
complied with the restrictions on offers, sales and deliveries of the
Certificates set forth in Schedule II and the Offering Circular, no registration
under the United States Securities Act of 1933, as amended (the "Act"), of the
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Certificates is required for their offer, sale and delivery in the manner
contemplated by this Agreement and the Offering Circular, and no qualification
of the Pooling and Servicing Agreement under the Trust Indenture Act of 1939, as
amended, is required.
2. Purchase, Sale, Payment and Delivery of Certificates. On the basis of
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the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Bank agrees to sell to the
Managers, and each of the Managers agrees, severally and not jointly, to
purchase from the Bank, on December 11, 1996 or on such other date as shall be
mutually agreed upon by the Bank and the Managers (the "Closing Date"), the
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aggregate principal amount of the Class A Certificates and the aggregate
principal amount of Class B Certificates, respectively, set forth opposite such
Manager's name on Schedule I hereto. The Class A Certificates being purchased
by the Managers hereunder are to be purchased at a purchase price equal to
99.85% (which represents the issue price thereof minus commissions) of the
principal amount thereof. The Class B Certificates being purchased by the
Managers hereunder are to be purchased at a purchase price equal to 99.80%
(which represents the issue price thereof minus commissions) of the principal
amount thereof.
Delivery of and payment for the Certificates shall be made at the offices
of the Lead Manager in London, England, at 2:00 p.m. London time on the Closing
Date. Payment of the purchase price for the Certificates being sold and
purchased hereunder shall be made on the Closing Date by wire transfer of United
States federal or other immediately available funds to an account to be
designated in writing three business days prior to the Closing Date by the Bank,
against delivery of the Certificates on the Closing Date. Each Class of the
Certificates so to be delivered shall initially be represented by a single
temporary global certificate in the form provided in the Pooling and Servicing
Agreement to a common depositary for Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System (the "Euroclear Operator"),
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and for Cedel Bank, societe anonyme ("Cedel"), for credit to the respective
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accounts at the Euroclear Operator and Xxxxx of the Managers or for such other
accounts as they may direct.
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3. Offering by Managers.
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(a) The Bank understands that the Managers propose to offer the
Certificates in the manner and upon the terms set forth in the Offering Circular
in an overseas offering that complies with the provisions of Regulation S of the
Act.
(b) Each Manager may provide to prospective investors the Series Term
Sheet dated November 12, 1996 relating to the Certificates (the "Series Term
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Sheet") prepared by the Bank and attached hereto as Exhibit A, subject to the
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following conditions:
(i) Such Manager shall have complied with the requirements of the
letter, dated November 8, 1996, of the Bank with respect to such Series Term
Sheet, a copy of which has been acknowledged by each Manager.
(ii) Each Manager, severally, represents and warrants to the Bank that
(a) it has not and will not provide to prospective investors any Series Term
Sheet or similar written summary description of the Certificates and the
Receivables other than the Offering Circular with respect to the offering of the
Certificates unless it has obtained the prior written consent of the Bank to
such usage and (b) other than the Series Term Sheet and the Offering Circular,
it has not and will not provide to prospective investors any written summary
description of the Certificates and the Receivables with respect to the offering
of the Certificates, except that the Managers may cause customary notices or
messages to be displayed or disseminated through electronic messaging or
information services, and the Managers may have delivered internally-generated
summary descriptions of the Certificates and the Receivables to prospective
investors, provided that each Manager severally agrees to indemnify and hold
harmless the Bank for any losses, claims, damages and liabilities to which the
Bank may become subject as a direct result of the display or dissemination of
such notices or messages by such Manager or as a direct result of the delivery
of such internally-generated summary descriptions by such Manager.
4. Certain Agreements of the Bank. The Bank covenants and agrees with the
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Managers as follows:
(a) The Bank will prepare an Offering Circular Supplement setting
forth the amount of Certificates covered thereby and the terms thereof not
otherwise specified in the Base Offering Circular, the price at which such
Certificates are to be purchased by the Managers, the initial public offering
price, the selling concessions and allowances, and such other information as the
Bank deems appropriate. Such Base Offering Circular and Offering Circular
Supplement will be dated November 14, 1996 and
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will be made available to the Managers prior to the Closing Date in such
quantities as they may reasonably request.
(b) For the period from the date of this Agreement until the
retirement of the Certificates, the Bank will deliver to the Managers the annual
statements of compliance and the annual independent certified public
accountants' reports furnished to the Trustee pursuant to the Pooling and
Servicing Agreement, as soon as such statements and reports are furnished to the
Trustee.
(c) The Bank will furnish to the Managers, from time to time prior to
the completion of the distribution of the Certificates (as determined by the
Lead Manager) the Offering Circular, and any amendments and supplements thereto,
in each case as soon as available and in such quantities as the Managers may
request.
(d) The Bank will advise the Lead Manager promptly of any proposal to
amend or supplement the Offering Circular and will not effect any such amendment
or supplement without the consent of the Lead Manager, which consent shall not
be unreasonably withheld.
(e) If, at any time prior to the earlier of (i) the completion of the
distribution of the Certificates (as determined by the Lead Manager) and (ii)
the date (as determined by the Lead Manager) which is at least 40 days after the
later of the commencement of the offering and the Closing Date, any event occurs
as a result of which the Offering Circular, as then amended or supplemented,
would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it is necessary
at any time to amend the Offering Circular, the Bank will promptly so notify the
Lead Manager and will prepare and furnish to the Lead Manager, subject to prior
review by the Lead Manager as provided in paragraph (d) of this Section 4, a
reasonable number of copies of an amendment or supplement to the Offering
Circular that will correct such statement or omission.
(f) So long as any of the Certificates are outstanding, the Bank will
furnish to the Lead Manager following each Distribution Date copies of all
reports or other communications (financial or other) furnished to holders of the
Certificates.
(g) During the period beginning on the date of the Offering Circular
Supplement and continuing to and including the Business Day following the
Closing Date, the Bank will not offer, sell, contract to sell or otherwise
dispose of any debt securities of or guaranteed by the Bank which are
substantially
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similar to the Certificates (other than Series 1996-8) without the prior written
consent of the Lead Manager.
(h) The Bank will use its reasonable efforts to obtain the listing of
the Certificates on the Luxembourg Stock Exchange (the "Stock Exchange") on or
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about the Closing Date and use its reasonable efforts to cause such listing to
be continued so long as any Certificate remains outstanding.
(i) The Bank will cause the Certificates to be prepared in temporary
global form, permanent global form and, to the extent required pursuant to the
Pooling and Servicing Agreement, in definitive bearer form, with coupons
attached thereto, and will take all appropriate action to permit the exchange of
interests in such temporary global certificate for interests in such permanent
global certificates or, if necessary, for such certificates in definitive form,
at the times and in the manner set forth in the Pooling and Servicing Agreement.
If necessary, the Bank will take all appropriate action to permit the exchange
of interests in the permanent global certificate for such definitive offered
certificates, at the times and in the manner set forth in the Pooling and
Servicing Agreement.
(j) Neither the Bank nor any person acting on its behalf has engaged
or will engage in any directed selling efforts (as defined under Regulation S of
the Act) with respect to the Certificates. The Bank and any person acting on its
behalf have complied and will comply with the offering restrictions of
Regulation S under the Act. The Bank will comply with the relevant restrictions
set forth in Schedule II as though it were a Manager.
(k) To the extent, if any, that the rating provided with respect to
the Certificates by the rating agency or agencies that initially rate the
Certificates is conditional upon the furnishing of documents or the taking of
any other actions by the Bank, the Bank shall use its reasonable efforts to
furnish such documents and take any such other actions.
5. Payment of Expenses. The Bank will pay all expenses incident to the
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performance of its obligations under this Agreement, including (i) the
preparation of this Agreement, (ii) the preparation, issuance and delivery of
the Certificates to the Managers, (iii) the fees and disbursements of the Bank's
counsel and accountants, (iv) the fees and disbursements of Xxxxxxx Xxxxxxx &
Xxxxxxxx, in its capacity as counsel to the Managers, but not in excess of
U.S.$50,000, (v) the printing and delivery to the Managers of copies of the
Series Term Sheet and the Offering Circular and of each amendment or supplement
thereto, (vi) any fees charged by rating agencies for the rating of the
Certificates, (vii) the listing of the Certificates on the
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Stock Exchange and (viii) the fees and expenses of the Trustee and its counsel.
6. Conditions of the Obligations of the Managers. The obligations of the
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several Managers to purchase and pay for the Certificates will be subject to the
accuracy of the representations and warranties on the part of the Bank herein,
to the accuracy of the statements of officers of the Bank made pursuant to the
provisions hereof, to the performance by the Bank of its obligations hereunder
and to the following additional conditions precedent:
(a) On or prior to the date of the Offering Circular and on or prior
to the Closing Date, the Managers shall have received a letter or letters, dated
as of the date of the Offering Circular and as of the Closing Date,
respectively, of Xxxxx & Young LLP, Certified Public Accountants, substantially
in the form of the drafts to which you have previously agreed and otherwise in
form and substance satisfactory to you and your counsel.
(b) At the Closing Date, the Bank shall have furnished to you
certificates of an executive officer of the Bank as to the accuracy of the
representations and warranties of the Bank herein at and as of the Closing Date,
as to the performance by the Bank of all of its obligations hereunder to be
performed at or prior to such Closing Date, and as to such other matters as you
may reasonably request.
(c) Xxxxx X. Xxxxxx, counsel for the Bank, shall have furnished to you
his written opinion, addressed to you and dated the Closing Date, in form and
substance satisfactory to you and your counsel, substantially to the effect
that:
(i) The Bank has been duly incorporated and is validly
existing as a bank in good standing under the laws of the State of
Delaware, United States, with full power and authority (corporate and
other) to own its properties and conduct its business, as presently
owned and conducted by it, and to enter into and perform its
obligations under this Agreement, the Spread Account Agreement and the
Pooling and Servicing Agreement (collectively, referred to in this
subsection (c) as the "Agreements"), the Cer tificates and the CIA
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Certificates and had at all times, and now has, the power, authority
and legal right to acquire, own and transfer the Receivables;
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(ii) The Bank is duly qualified to do business and is
in good standing, and under state laws, as they are currently
interpreted and enforced, has obtained all necessary licenses and
approvals in each jurisdiction in which failure to qualify or to
obtain such licenses or approvals would materially and adversely
affect the enforceability of any Receivable by the Bank or the
Trustee or would adversely affect the ability of the Bank to perform
its obligations under the Agreements, the Certificates or the CIA
Certificates;
(iii) The Certificates and the CIA Certificates have
been duly authorized, executed and delivered by the Bank and, when
duly authenticated by the Trustee in accor dance with the terms of the
Pooling and Servicing Agreement and, with respect to the Certificates,
delivered to and paid for by the Managers in accordance with the terms
of this Agreement, or, with respect to the CIA Certificates, delivered
to and paid for by the purchasers thereof as provided in the CIA
Purchase Agreement, will be validly issued and outstanding and
entitled to the benefits provided by the Pooling and Servicing
Agreement;
(iv) Each of the Agreements has been duly authorized,
executed and delivered by the Bank and constitutes the legal, valid
and binding agreement of the Bank enforceable against the Bank in
accordance with its terms, subject, as to enforceability to (A) the
effect of bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation and other similar laws relating to or
affecting the rights and remedies of creditors generally, and (B) the
application of principles of equity (regardless of whether considered
and applied in a proceeding in equity or at law) and the rights and
powers of the FDIC;
(v) The Trust is not now, and immediately following
the sale of the Certificates pursuant to this Agreement will not be,
required to register under the 1940 Act;
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(vi) No consent, approval, authorization or order of
any governmental agency or body is required for (A) the execution,
delivery and performance by the Bank of its obligations under the
Agreements, the Certificates or the CIA Certificates, or (B) the
issuance or sale of the Certificates or the CIA Certificates, except
the filing of Uniform Commercial Code financing statements with
respect to the Receivables and the approval of the Office of the
State Bank Commissioner of the State of Delaware, United States;
(vii) To the knowledge of such counsel, neither the
execution and delivery of the Agreements or the Certificates or the
CIA Certificates by the Bank nor the performance by the Bank of the
transactions therein contemplated nor the fulfillment of the terms
thereof does or will result in any violation of any statute or
regulation or any order or decree of any court or governmental
authority binding upon the Bank or its property, or conflict with, or
result in a breach or violation of any term or provision of, or result
in a default under any of the terms and provisions of, the Bank's
charter or by-laws or any material indenture, loan agreement or other
material agreement to which the Bank is a party or by which the Bank
is bound;
(viii) To the knowledge of such counsel after due
investigation, there are no legal or governmental proceedings pending
to which the Bank is a party or to which the Bank is subject which,
individually or in the aggregate (A) would have a material adverse
effect on the ability of the Bank to perform its obligations under the
Agreements or the Certificates, (B) assert the invalidity of the
Agreements, the Certificates or the CIA Certificates, (C) seek to
prevent the issuance, sale or delivery of the Certificates or the CIA
Certificates or any of the transactions contemplated by the
Agreements or (D) seek to affect adversely the United States federal
income tax attributes of the Certificates described in the Offering
Circular;
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(ix) Such counsel has not independently verified and is
not passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the information contained in the
Offering Circular. Based upon discussion with the Bank, its
accountants and others, however, no facts have come to his attention
that cause him to believe that the Offering Circular (except for the
financial statements, financial schedules and other financial data
included therein, as to which such counsel expresses no view),
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order to
make the statements therein not misleading.
(d) You shall have received a letter of Xxxxxxx, Arps,
Slate, Xxxxxxx & Xxxx LLP, special counsel for the Bank, to the effect that
you may rely on those provisions of their opinions to Xxxxx'x Investors
Service, Inc. and Standard & Poor's Ratings Services, a Division of The
XxXxxx-Xxxx Companies, Inc. ("Standard & Poor's")(each such opinion
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referred to herein as a "Rating Agency Opinion") with respect to certain
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matters relating to the transfer of the Receivables to the Trust, with
respect to the perfection of the Trust's interest in the Receivables and
with respect to other related matters.
(e) You shall have received an opinion of Xxxxxxx, Arps,
Slate, Xxxxxxx & Xxxx LLP, special counsel to the Bank, addressed to you,
dated the Closing Date and satisfactory in form and substance to you and
your counsel, to the effect that the Certificates will be treated as
indebtedness for United States federal income tax purposes and for Delaware
income tax pur poses.
(f) You shall have received from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, special counsel to the Bank, such opinion or opinions,
dated the Closing Date, substantially to the effect that:
(i) Each of the Pooling and Servicing Agreement and the
Spread Account Agreement (collectively referred to in this subsection
(f) as the "Agreements") constitutes the valid and binding obligation
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of the Bank, enforceable against the Bank in accor dance with its
terms, except (x) to the extent
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that the enforceability thereof may be limited by (a) bankruptcy,
insolvency, receivership, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights
generally and the rights of creditors of Delaware chartered banks as
the same may be applied in the event of the bankruptcy, insolvency,
receivership, reorganization, moratorium or other similar event in
respect of the Bank, (b) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in
equity) and (c) the qualification that certain of the remedial
provisions of the Agreements may be unenforceable in whole or in part,
but the inclusion of such provisions does not affect the validity of
the Agreements taken as a whole, and the Agreements, together with
applicable law, contain adequate provisions for the practical
realization of the benefits of the security created thereby and (y)
such counsel expresses no opinion as to the enforceability of any
rights to contribution or indemnification which are violative of
public policy underlying any law, rule or regulation;
(ii) The Certificates and the CIA Certificates, when
executed and authenticated in accordance with the terms of the Pooling
and Servicing Agreement and delivered to and paid for, with respect to
the Certificates, by the Managers pursuant to this Agreement, or, with
respect to the CIA Certificates, by the purchasers thereof pursuant to
the CIA Purchase Agreement, will be duly and validly issued and
outstanding and will be entitled to the benefits of the Pooling and
Servicing Agreement;
(iii) This Agreement has been duly authorized, executed
and delivered by the Bank;
(iv) Neither the execution, delivery or performance by
the Bank of the Agreements or this Agreement, nor the compliance by
the Bank with the terms and provisions thereof or hereof, will
contravene any provision of any applicable law;
14
(v) Based on such counsel's review of applicable laws,
no governmental approval, which has not been obtained or taken and is
not in full force and effect, is required to authorize or is required
in connection with the execution, delivery or performance of the
Agreements by the Bank;
(vi) The Certificates, the CIA Certificates, the
Agreements and this Agreement conform in all material respects to the
descriptions thereof contained in the Offering Circular;
(vii) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended, and the Trust is not required to be registered under the 1940
Act; and
(viii) The statements in the Offering Circular under the
headings "Certain Legal Aspects of the Receivables" and "Certain U.S.
Federal Income Tax Consequences", to the extent that they constitute
matters of law or legal conclusions with respect thereto, have been
reviewed by such counsel and are correct in all material respects.
Such opinion shall also state that such counsel has participated in
conferences with officers and representatives of the Bank, counsel for the
Bank, representatives of the independent accountants of the Bank and the
Managers at which the contents of the Offering Circular and related matters
were discussed and, although such counsel need not pass upon, and need not
assume any responsibility for, the accuracy, com pleteness or fairness of
the statements contained in the Offering Circular and shall have made no
independent check or verification thereof, except for those made under the
captions "Certain Legal Aspects of the Receiv xxxxx" and "Certain U.S.
Federal Income Tax Consequences" to the extent set forth in paragraph
(viii) above, on the basis of the foregoing, no facts shall have come to
such counsel's attention that shall have led such counsel to believe that
the Offering Circular, as of its date, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading, except that such counsel need not
15
express an opinion or belief with respect to the financial statements,
schedules and other financial information included in such Offering
Circular or excluded therefrom.
(g) XxXxxxx Xxxxx Battle & Xxxxxx, L.L.P., counsel for The Bank of New
York, a New York banking corporation (the "Agent"), in connection with the
-----
Agency Agreement dated as of December 4, 1995 between the Agent and the
Trustee (the "Agency Agreement"), and counsel for the Trustee, shall have
----------------
furnished to you their written opinion, addressed to you and dated the
Closing Date, in form and substance satisfactory to you and your counsel,
substantially to the effect that:
(i) the Agent is a banking corporation duly organized,
validly existing and in good standing under the laws of the State of
New York, United States, and has the corporate power and authority to
execute, deliver and perform its obligations under the Agency
Agreement;
(ii) the Certificates have been duly authenticated by
the Agent pursuant to the Agency Agreement and in accordance with the
Pooling and Servicing Agreement;
(iii) the Trustee is a banking corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware, United States, and has the corporate power and
authority to execute, deliver and perform its obligations under the
Pooling and Servicing Agreement;
(iv) the Supplement and the Spread Account Agreement
have been duly authorized, executed and delivered by the Trustee, and
the Pooling and Servicing Agree ment and the Spread Account Agreement
constitute the legal, valid and binding agreements of the Trustee
enforceable against the Trustee in accordance with their respective
terms, except (x) as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights of creditors generally (as such laws would apply
in the event of the insolvency, receivership, conservatorship or
reorganization of, or other similar occurrence
16
with respect to, the Trustee), (y) that the enforceability of the
Pooling and Servicing Agreement and the Spread Account Agreement may
be subject to the application of general principles of equity
(regardless of whether considered or applied in a proceeding in equity
or at law), and (z) that certain remedial provisions of the Pooling
and Servicing Agreement may be unenforceable in whole or in part, but
the inclusion of such provisions does not affect the validity of the
Pooling and Servicing Agreement taken as a whole, and the Pooling and
Servicing Agreement, together with applicable law, contains adequate
provisions for the practical realization of the benefits of the
security provided thereby. Such counsel expresses no opinion as to
the enforceability of any rights to contribution or indemnification
that are violative of public policy underlying any law, rule or
regulation;
(v) the execution and delivery by the Trustee of the
Supplement and the Spread Account Agreement and the performance by the
Trustee of its obligations under the Pooling and Servicing Agreement
and the Spread Account Agreement do not conflict with or result in a
violation of (x) any law or regulation of the United States of America
or the State of Delaware, United States, governing the banking or
trust activities of the Trustee or (y) the amended and restated
articles of association or by-laws of the Trustee; and
(vi) the execution and delivery by the Trustee of the
Supplement and the Spread Account Agreement and the performance by the
Trustee of its obligations under the Pooling and Servicing Agreement
and the Spread Account Agreement do not require any approval,
authorization or other action by, or filing with, any governmental
authority of the United States of America or the State of Delaware,
United States, having jurisdiction over the banking or trust
activities of the Trustee, except such as have been obtained, taken or
made.
(h) You shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx, special
counsel for the Managers,
17
such opinion or opinions, dated the Closing Date, in form and substance
satisfactory to the Lead Manager, and the Bank shall have furnished to such
counsel such documents as they may request for the purpose of enabling them
to pass upon such matters.
(i) You shall have received evidence satisfactory to you and your
counsel that, on or before the Closing Date, UCC-1 financing statements
have been filed in the appropriate filing offices of the State of Delaware,
United States, and such other jurisdictions as counsel to the Bank deems
appropriate to reflect the interest of the Trustee in the Receivables.
(j) The Class A Certificates shall be rated "AAA" by Standard & Poor's
and "Aaa" by Xxxxx'x Investors Service, Inc. and the Class B Certificates
shall be rated "A" by Standard & Poor's and rated "A2" by Xxxxx'x Investors
Service, Inc. on the Closing Date, and you shall have received copies of
letters to such effect dated the Closing Date from each Rating Agency.
(k) You shall have received evidence satisfactory to you that, on or
before the Closing Date, the Bank shall have received the approval of the
Office of the State Bank Commissioner of the State of Delaware, United
States, to the transaction.
(l) An Agency Agreement among First USA Bank, Union Bank of
Switzerland, London Branch, Banque de Luxembourg, S.A. and The Bank of New
York relating to the Certificates shall have been executed by the parties
thereto.
(m) The CIA Certificates shall have been duly and validly executed and
delivered by the Bank, authenticated by or on behalf of the Trustee in
accordance with the Pooling and Servicing Agreement, delivered to and paid
for by the purchasers thereof as provided in the CIA Purchase Agreement and
validly issued and outstanding.
(n) In the case of the Class A Certificates, concurrently with the
purchase thereof by the Managers, the Class B Certificates shall have been
duly and validly executed and delivered by the Bank, and authenticated by
or on behalf of the Trustee in accordance with the Pooling and Servicing
Agreement; and, in the case of the Class B Certificates, concurrently with
the purchase thereof by the Managers, the Class A Certificates shall have
been duly and validly executed and delivered by the Bank, and
18
authenticated by or on behalf of the Trustee in accordance with the Pooling
and Servicing Agreement.
(o) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident thereto shall be satisfactory
in form and substance to you and your counsel, and you and your counsel
shall have received such information, certifi xxxxx and documents as any of
them may reasonably re quest.
7. Indemnification and Contribution.
--------------------------------
(a) The Bank agrees to indemnify and hold harmless each Manager and
each person, if any, who controls any Manager within the meaning of Section
15 of the Act and under Section 20 of the United States Securities Exchange
Act of 1934, as amended (the "Exchange Act"), against any and all losses,
------------
claims, damages or liabilities to which they may become subject insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Series Term Sheet or the
Offering Circular (collectively, the "Offering Documents"), or in any
revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party
promptly upon demand for any legal or other expenses reasonably incurred by
it in connection with investigating or defending or preparing to defend any
such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Bank will not be liable in any such
-------- -------
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Bank by any Manager
specifically for inclusion therein or any revision or amendment thereof or
supplement thereto. The foregoing indemnification with respect to any
Series Term Sheet shall not inure to the benefit of any Manager from whom
the person asserting any such losses, claims, damages or liabilities
purchased Certificates, or any person con trolling such Manager, if a copy
of the Offering Circular (as then amended or supplemented if the Bank shall
have furnished any amendments or supplements thereto) was not sent or given
by or on behalf of such
19
Manager to such person at or prior to the written confirmation of the sale
of such Certificates to such person and if the Offering Circular (as so
amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability.
(b) Each Manager severally and not jointly agrees to indemnify and
hold harmless the Bank, its directors, each of the Bank's officers who
participated in the issuance of the Certificates and each person, if any,
who controls the Bank within the meaning of Section 15 of the Act and under
Section 20 of the Exchange Act against any and all losses, claims, damages
or liabilities to which they may become subject insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Offering Documents, or in any revision or
amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Bank by such Manager specifically for
inclusion therein or any revision or amendment thereof or supplement
thereto, and agrees to reimburse such indemnified party promptly upon
demand for any legal or other expenses reasonably incurred by them in
connection with investigating or defending or preparing to defend any such
loss, claim, damage or liability or action as such expenses are incurred.
(c) Promptly after receipt by an indem nified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve the indemnifying party from any liability which it may
have to any indemnified party under this Section 7, except to the extent
that it has been materially prejudiced by such failure, or from any
liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party and it notified the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to
20
participate therein and, to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement
of any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnifying party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Bank on the one hand and the respective Manager on
the other from the offering of the Certificates or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Bank on
the one hand and of the respective Manager on the other in connection with
the statements or omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Bank on the one hand and the respective
Manager on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received
by the Bank bear to the total managing discounts and commissions received
by such Manager. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission
21
to state a material fact relates to information supplied by the Bank or by
any Manager and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d),
each Manager shall not be required to contribute any amount in excess of
the managing discount or commission applicable to the Certificates
purchased by it hereunder. The Bank and the Managers agree that it would
not be just and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation or by any other method of allocation
which does not take account of any of the equitable considerations referred
to above in this subsection (d). No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The Managers hereby confirm that, and the Bank hereby acknowledges
and agrees that, the only information that the Managers have furnished to
the Bank for inclusion in the preparation of the Offering Circular is in
the following: (i) the fifth paragraph on page S-2 of the Offering
Circular, concerning stabilization and overallotment by the Swiss Bank
Corporation; and (ii) the second and ninth paragraphs and the second
sentence of the third paragraph under the caption "Underwriting" in the
Offering Circular.
8. Survival. The Bank and the Managers agree that the respective
--------
representations, warranties and agreements made by them herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed
to be relied upon, in the case of the Bank, by each Manager and, in the
case of the Managers, by the Bank, notwithstanding any investigation
heretofore or hereafter made by or on behalf of the Bank or the Managers,
and that the respective representations, warranties and agreements
(including without limitation the indemnity and contribution agreement)
made by the Bank and the Managers herein or in any such certificate or
other instrument shall survive the delivery of and payment for the
Certificates.
22
9. Termination. (a) This Agreement may be terminated in the sole
-----------
discretion of the Managers by notice to the Bank given at or prior to the
Closing Date in the event that the Bank shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on its part to
be performed or satisfied hereunder at or prior thereto. Termination of
this Agreement pursuant to this subsection 9(a) shall be without liability
of any party to any other party except as provided in Sections 5 and 7
hereof.
(b) Notwithstanding anything contained in this Agreement to the
contrary, the Lead Manager on behalf of the Managers may by notice to the
Bank terminate this Agreement at any time before the time on the Closing
Date when payment would otherwise be due hereunder to the Bank in respect
of the Certificates if, in the opinion of the Lead Manager there shall have
occurred (i) any change, or any development involving a prospective change,
in or affecting particularly the business or properties of the Trust, or
the Bank which materially impairs the investment quality of the
Certificates or makes it impractical or inadvisable to market the
Certificates; or (ii) there shall have been such a change in the national
or international financial, political or economic conditions or currency
exchange rates or exchange controls as would be likely to prejudice
materially the success of the offering and the distribution of the
Certificates or dealings in the Certificates in the secondary market and,
upon notice being given, the parties to this Agreement shall (except for
the liability of the Bank in relation to expenses as provided in Section 5
hereof and except for any liability arising before or in relation to such
termination) be released and discharged from their respective obligations
under this Agreement.
10. Representation of the Managers. Each Manager represents and
------------------------------
warrants to, and agrees with, the Bank that (w) it has only issued or
passed on and shall only issue or pass on in the United Kingdom any
document received by it in connection with the issue of the Certificates to
a person who is of a kind described in Article 11(3) of the Financial
Services Act 1986 (Investment Advertisements)(Exemptions) Order 1996 or who
is a person to whom the document may otherwise lawfully be issued or passed
on, (x) it has complied and shall comply with all applicable provisions of
the Financial Services Act 1986 of Great Britain with respect to anything
done by it in relation to the Certificates in, from or otherwise involving
the United Kingdom and (y) if that Manager is an authorized person
23
under the Financial Services Act 1986, it has only promoted and shall only
promote (as that term is defined in Regulation 1.02 of the Financial
Services (Promotion of Unregulated Schemes) Regulations 1991) to any person
in the United Kingdom the scheme described in the Offering Circular if that
person is of a kind described either in Section 76(2) of the Financial
Services Act 1986 or in Regulation 1.04 of the Financial Services
(Promotion of Unregulated Schemes) Regulations 1991.
11. Notices. All communications provided for or permitted hereunder
-------
shall be in writing and shall be deemed to have been duly given if
personally delivered, sent by overnight courier or mailed by registered
mail, postage prepaid and return receipt requested, or transmitted by
telex, telegraph or telecopier and confirmed by a similar mailed writing,
if to (a) the Managers, addressed to them c/o Swiss Bank Corporation, Swiss
Bank House, 0 Xxxx Xxxxxx Xxxxxx, Xxxxxx, XX0X 0XX, Xxxxxxx, Attention:
Fixed Income Syndicate, or to such other address as the Lead Manager may
designate in writing to the Bank or (b) the Bank, addressed to the Bank at
000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Executive
Vice President - Finance & Accounting, with a copy to First USA, Inc., 0000
Xxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000, Attention: Securitization
Group.
12. Selling Restrictions. Each Manager agrees that it will comply
--------------------
with the restrictions on offers, sales and deliveries of the Certificates
set forth in Schedule II to this Agreement and the Offering Circular and
hereby makes the representations and covenants therein.
13. Secondary Trusts. Each Manager, severally, represents that it
----------------
will not, at any time that such Manager is acting as a "manager" with
respect to the Certificates, transfer, deposit or otherwise convey any
Certificates into a trust or other type of special purpose vehicle that
issues securities or other instruments backed in whole or in part by, or
that represents interests in, such Certificates without the prior written
consent of the Bank, provided that the foregoing limitation shall not be
applicable to transfers, deposits or other conveyances to or for the
account of any mutual fund.
14. Successors; Persons Entitled to Benefit of Agreement. This
----------------------------------------------------
Agreement shall inure to the benefit of and be binding upon the Managers,
the Bank and their respective successors. This Agreement and the terms and
24
provisions hereof are for the sole benefit of only those persons, except
that (a) the respective representations, warranties, indemnities and
agreements of the Bank contained in this Agreement shall also be deemed to
be for the benefit of the person or persons, if any, who control any
Manager within the meaning of the Act and each director, officer, employee
or agent of such Manager, the Trustee and the Bank, as the case may be, and
(b) the representations, warranties, indemnities and agreements of the
Managers contained in this Agreement shall also be deemed to be for the
benefit of directors, officers and employees of the Bank, and the person or
persons, if any, controlling the Bank within the meaning of the Act.
Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this Section 14, any legal or
equitable right, remedy or claim under or in respect of this Agreement or
any provision contained herein.
15. Severability of Provisions. Any cove nant, provision, agreement
--------------------------
or term of this Agreement that is prohibited or is held to be void or
unenforce able in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof.
16. Entire Agreement. This Agreement consti tutes the entire
----------------
agreement and understanding of the parties hereto with respect to the
matters and transac tions contemplated hereby and supersedes all prior
agreements and understandings whatsoever relating to such matters and
transactions.
17. Amendment and Waiver. Neither this Agreement nor any term hereof
--------------------
may be changed, waived, discharged or terminated orally, except by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. No failure to exercise
and no delay in exercising, on the part of the Managers or the Bank (or
their assignees), any right, remedy, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power
or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exhaustive of any rights, remedies, powers and
privileges provided by law.
25
18. Headings. The headings in this Agreement are for the purposes of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
19. Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall constitute an original, but all of which shall together
constitute one instrument.
20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED
STATES OF AMERICA, WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS
THEREOF.
26
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will be a binding agreement among the undersigned in
accordance with its terms.
Very truly yours,
FIRST USA BANK,
as Transferor and Servicer
By:/s/ X. Xxxx Xxxxxxxx
-----------------------------
Name: X. Xxxx Xxxxxxxx
Title: Vice President
The foregoing Underwriting Agreement
is hereby agreed to as of the date
first above written.
SWISS BANK CORPORATION, LONDON BRANCH,
for itself and as Attorney-in-fact
for the other several Managers named in
Schedule I hereto
By:/s/ Xxxxx Xxxxx
----------------------------
Name: Xxxxx Xxxxx
Title: Associate Director
Debt Capital Markets
By:/s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
SBC Warburg Inc.
Asset Backed Finance
Schedule I
----------
Aggregate Principal
Amount of the Class A
Manager Certificates
------- ---------------------
Swiss Bank Corporation, London Branch...... U.S.$363,060,000
Barclays de Zoete Wedd Limited............. U.S.$ 60,000,000
Deutsche Bank AG London.................... U.S.$ 60,000,000
Total................................. U.S.$483,060,000
=====================
Aggregate Principal
Amount of the Class B
Manager Certificates
------- ---------------------
Swiss Bank Corporation, London Branch...... U.S.$ 21,825,000
Barclays de Zoete Wedd Limited............. U.S.$ 21,825,000
Total................................. U.S.$ 43,650,000
=====================
Schedule II
-----------
Selling Restrictions
--------------------
1. The Certificates have not been and will not be registered
under the United States Securities Act of 1933, as amended (the "Act"), and
---
may not be offered or sold within the United States or to, or for the
account or benefit of, United States persons except in accordance with
Regulation S under the Act or pursuant to an exemption from the
registration requirements of the Act. We have offered and sold the
Certificates, and will offer and sell the Certificates (i) as part of their
distribution at any time and (ii) otherwise until 40 days after the later
of the commencement of the offering and the closing date, only in
accordance with Rule 903 of Regulation S under the Act ("Regulation S").
------------
Accordingly, neither we, our affiliates nor any persons acting on our or
their behalf have engaged or will engage in any directed selling efforts
with respect to the Certificates, and we and they have complied and will
comply with the offering restrictions requirement of Regulation S. We
agree that, at or prior to confirmation of the sale of Certificates, we
will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Certificates from us
during the Restricted Period a confirmation or notice to substantially the
following effect:
"The Certificates covered hereby have not been registered under
the United States Securities Act of 1933, as amended (the "Act"), and
---
may not be offered and sold within the United States or to, or for the
account or benefit of, United States persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after the
later of the commencement of the offering and the closing date,
except in either case in accordance with Regulation S under the Act
("Regulation S"). Terms used above have the meaning given to them by
------------
Regulation S."
Terms used in this paragraph 1 have the meanings given to them by
Regulation S.
2. We have not entered and will not enter into any contractual
arrangement with respect to the distribution or delivery of the
Certificates, except with our affiliates or with the prior written consent
of the Bank.
3. In addition,
(a) except to the extent explicitly permitted under U.S. Treas.
Reg. (S) 1.163-5(c)(2)(i)(D) (the "D Rules"), we represent, covenant
-------
and agree that (i) we have not offered or sold, and during the
Restricted Period will not offer or sell, Certificates to a person who
is within the United States or its Possessions or to a United States
person, and (ii) in connection with the sale of Certificates during
the Restricted Period we have not delivered and will not deliver
within the United States or its Possessions Certificates in definitive
form;
(b) we represent, covenant and agree that we have, and throughout
the Restricted Period will have, in effect procedures reasonably
designed to ensure that our employ ees or agents who are directly
engaged in selling Certif icates are aware that such Certificates
cannot be offered or sold during the Restricted Period to a person who
is within the United States or its Possessions or to a United States
person, except as explicitly permitted by the D Rules;
(c) if we are a United States person to which a Certificate may
be sold pursuant to the D Rules, we represent, covenant and agree that
we are acquiring the Certificates for purposes of resale in connection
with their original issuance and if we retain Certificates for our own
account, we will only do so in accordance with the requirements of
U.S. Treas. Reg. (S) 1.163-5(c)(2)(i)(D)(6); and
(d) we will not permit any Affiliate (within the meaning of U.S.
Treas. Reg. (S) 1.163-5(c)(2)(i)(D) (4)(iii)), Distributor (within the
meaning of Treas. Reg. (S) 1.163-5(c)(2)(i)(D)(4)) or any other person
to acquire any Certificates for the purpose of offering or selling
them during the Restricted Period unless such affiliate, distributor
or other person provides us (for your benefit and the benefit of the
Trustee) with the representations and agreements contained in clauses
(1), (2) and (3).
Terms used in this paragraph 3 as defined terms and not otherwise defined
have the meanings given to them by the United States Internal Revenue Code
of 1986, as amended, and the Treasury regulations thereunder, including the
D Rules.
4. Each Manager represents and warrants to, and agrees with, the
Bank that (w) it has only issued or passed on and shall only issue or pass
on in the United Kingdom any document received by it in connection with the
issue of the Certificates to a person who is of a kind described in Article
30
11(3) of the Financial Services Act 1986 (Investment Advertise
ments)(Exemptions) Order 1996 or who is a person to whom the document may
otherwise lawfully be issued or passed on, (x) it has complied and shall
comply with all applicable provisions of the Financial Services Act 1986 of
Great Britain with respect to anything done by it in relation to the
Certificates in, from or otherwise involving the United Kingdom and (y) if
that Manager is an authorized person under the Financial Services Act 1986,
it has only promoted and shall only promote (as that term is defined in
Regulation 1.02 of the Financial Services (Promotion of Unregulated
Schemes) Regulations 1991) to any person in the United Kingdom the scheme
described in the Offering Circular if that person is of a kind described
either in Section 76(2) of the Financial Services Act 1986 or in Regulation
1.04 of the Financial Services (Promotion of Unregulated Schemes)
Regulations 1991.
5. No action has been or will be taken by the Bank or any other
person that would permit the offer or sale of the Certificates or the
distribution of the Offering Circular or any other offering material
relating to the Certificates in a jurisdiction where action for that
purpose is required. The Bank shall have no responsibility with respect to
the right of any person to offer or sell Certificates or to distribute the
Offering Circular or any other offering material relating to the
Certificates in any jurisdiction. Accordingly, no Manager shall offer or
sell any Certificates, or distribute the Offering Circular or any other
offering material relating to the Certificates, in any jurisdiction except
in compliance with applicable law. Each Manager shall obtain any consent,
ap proval or authorization required for it to offer or sell Certificates,
or to distribute the Offering Circular or any other offering material
relating to the Certificates, under the laws or regulations of any
jurisdiction where it proposes to make offers or sales of Certificates, or
to distribute the Offering Circular or any other offering material relating
to the Certificates.
6. Each Manager will, unless prohibited by appli cable law,
furnish to each person to whom it offers or sells Certificates a copy of
the Offering Circular (and any amendments and supplements thereto) or
(unless delivery of the Offering Circular is required by applicable law)
inform each such person that a copy will be made available upon request.
No Manager is authorized to give any information or to make any
representation not contained in the Offering Circular in connection with
the offer and sale of Certificates.
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